'The judge was so mad at them, saying you were outside of your own law,' says family law expert

B.C. has been sending children outside of province for adoption for decades, but only recently amended the Adoption Act to give them the legal authority to do so. (Fruity Monkey/Flickr)

B.C. has amended the Adoption Act to make out-of-province adoptions legal, following lawsuits focused on the long-standing practice of placing children in other provinces.

For decades the Ministry of Children and Family Development (MCFD) sent children to families outside of B.C. to be adopted, but the B.C. Supreme Court ruled last year it was illegal.

The province tabled a bill in early March to change the act, in what an NDP MLA termed a "surprise" move.

"It came out of nowhere," said Melanie Mark, critic for issues involving families and children.

She said while the adoption process needs clarity, the change runs "roughshod" over families, particularly Indigenous families affected by the changes but not consulted during the drafting of the bill.

"This bill got amended because for the past 20 years the province has been acting out of its jurisdiction."

B.C.'s Adoption Act has been changed to allow out-of-province adoptions, after more than 130 already went through. (Getty Images)

"They were caught. The amendments were them covering their tracks because the Supreme Court said what they were doing was wrong."

In March 2016 a B.C. Supreme Court ruling warned that the MCFD's director of adoption has no "legal authority" to do this, despite a long-standing practice that's affected 130 children since 1997.

Not legal

In her ruling, Justice Barbara Young warned the practice potentially put children at risk, as B.C.'s director of adoption has no authority to remove a child if an adoption outside of the province breaks down.

"The Director says that it would be absurd to prevent her from placing a child for adoption outside of British Columbia. I do not agree," said Justice Young in her ruling.

The judge warned the Adoption Act needed changes or the province was legally vulnerable.

More than 1,000 children await adoption in B.C., according to the government.

Now the government is protected from lawsuits on the issue, even if a case dated from before the Adoption Act was changed.

"This ensures the stability of these adoptions so they cannot be legally challenged," said MLA Linda Reimer on March 6, while explaining the proposed changes in the legislative assembly.

Change needed

The former Representative of Children and Youth urged the government to change legislation to fix issues in the adoption program in a 2014 report called Finding Forever Families.

"It's so clear. That's why the judge was so mad at them. The judge was saying you were outside of your own law that you created," said family lawyer Leena Yousefi of YLaw Group in Vancouver.

Yousefi and other legal experts agree that the 1996 needed adjustment, becoming out-of-date in a world where adoptions increasingly cross borders.

"This was bound to happen," said Yousefi.

A two-year-old Métis girl at the heart of a court fight between her foster parents and the B.C. government walks with her foster father in Butchart Gardens in January 2016. (Handout/The Canadian Press)

But she noted the sudden policy shift is a blow for some, including a foster family fighting to adopt a Métis girl — known only as S.S. to protect her identity — and prevent her being placed with a non-aboriginal family in Ontario, but who already have adopted her siblings.

"It's terrible because they are losing their case before having it heard," said Yousefi.

'Streamlined' system

In a statement, the government framed the changes as "streamlining" a system that processes a record 368 adoptions in 2015 and 2016.

"The amendments will ensure that out-of-province adoptions can be considered where it is in the best interests of the child, and confirm the B.C. director of adoption's role as the sole guardian of a child in care to streamline the adoption process," they wrote.

But critics argue the government failed to consult with Indigenous leaders concerned with keeping children in First Nations homes near ancestral communities.

"The government has now placed immunity over itself," said Yousefi.

Nobody can sue over the removal of a child from his or her First Nation community on the basis of location alone.

But the door is not shut, as lawsuits can still be launched over out-of-province adoptions if it's not considered in the best interest of the child.

This child's foster family fought to keep her, but she was sent to join siblings in adoptive family in Ontario. (Mike McArthur/CBC)